Why is anyone shocked to hear that the FBI perused senators’ phone records around the time of a riot at the Capitol over which the president had been impeached?

S ome early-week travel kept me out of the fray on the latest, breathless Trump-administration disclosure about something that’s been obvious for years, namely, the fact that in connection with the Biden Justice Department’s January 6 (J6) investigation, which came to be overseen by special counsel Jack Smith, the FBI examined telephone toll records of at least nine congressional Republicans — eight in the Senate and one in the House, Representative Mike Kelly (R., Pa.), who was apparently mistakenly identified by the FBI as a senator. (See our James Lynch’s reports, here and here.)

My reaction? I would be surprised if it’s only nine.

As with National Intelligence Director Tulsi Gabbard’s Russiagate disclosures this past summer, what FBI Director Kash Patel has disclosed here is just the paper trail we had not previously seen regarding government actions that have long been patent. No, we didn’t know every detail, but we knew the story.

Smith’s J6 indictment elucidates that he was trying to make a prosecutable case against Trump for obstruction of Congress’s January 6, 2021, joint session to count state-certified electoral votes and ratify Joe Biden’s victory in the 2020 presidential election. Key to Smith’s theory of obstruction was the “fake electors” scheme.

The Trump campaign sought to contest the 2020 election results of seven states (states won by Biden that had GOP majorities in the state legislature); to this end, the campaign assembled alternative slates of electors (i.e., the people who would have cast the state’s electoral votes if Trump had won, and who became an alternative to the Biden electors that those states actually certified). The prosecution theory was that Trump and his allies in the Senate and House would try to use the existence of these alternative-elector slates — even though they were not certified — as a basis to pressure Vice President Mike Pence to refuse to count the votes of those states (either by invalidating them completely, or remanding the matter to the states for further investigation). The long-shot hope was that if Pence invalidated the votes, then neither candidate would have a majority and the election would be thrown to the House of Representatives, where Republicans had a majority.

As I’ve argued for years regarding the various half-baked J6 schemes, this one had no prospect of success. Nevertheless, there is plenty of evidence that it was indeed one of the schemes by which Trump and his supporters hoped to retain him in power.

That said, the fact that there is plenty of evidence supporting a proposition does not make the proposition a crime. To repeat what I’ve also argued many times, Trump’s abuses of power were grist for impeachment, not criminal prosecution.

If the Democratic-controlled House had conducted a competent investigation before impeaching Trump (rather than politicizing the impeachment process to smear all Trump supporters as “domestic terrorists”), any evidence of communications between Trump and GOP senators around the time of the joint session and the riot would properly have been part of that probe. Further, if this evidence had been part of an impeachment probe in which Congress investigated the actions of the senators, there would have been no separation-of-powers and speech-or-debate clause immunity issues. The controversy is over whether it was appropriate for the Justice Department and the FBI to gather the evidence pertaining to official communications of senators in connection with a criminal investigation.

In any event, the Biden DOJ (including Smith after he was appointed special counsel) investigated the “fake electors” scheme on a fraud theory — i.e., that Trump, his campaign, and his congressional allies conjured up phony grounds to object to Biden’s electoral votes. In furtherance of that inquiry, the FBI got toll records for at least the nine lawmakers who’ve been named in the news reporting. (I will call them the “senators” for simplicity’s sake, even though Kelly was included.) As I said above, I’d be surprised if it’s only nine; 126 Republican members of the House signed on to the amicus brief filed by then–Representative (now Speaker) Mike Johnson (R., La.) in the Texas v. Pennsylvania case before the Supreme Court, in which Trump supporters unsuccessfully sought to invalidate the electoral votes of several states won by Biden. I don’t see why the president’s communications with his House allies would have been of less interest to the FBI and prosecutors than his communications with GOP senators.

The claim that the senators were being “monitored” is hyperbole. (The whopper by Senator Josh Hawley (R., Mo.) that his phone was “tapped” is par for the course.) The toll records were for a very brief timeframe (January 4 through 7, 2021), right before, during, and after the J6 joint session of Congress that was interrupted by the riot. The courts have long held that people do not have a Fourth Amendment expectation of privacy in telephone toll records, which show only the fact that a phone call was made: to and from a phone number, date, time, and duration. (See the Supreme Court’s 1979 Smith v. Maryland ruling.) Toll records do not reveal the contents of the phone call (i.e., what each interlocutor said); to seize that information (i.e., to “tap” the phone), the government needs to obtain a probable-cause warrant (known as a Title III order) under a highly regulated legal process with extensive judicial oversight. (See Section 2516 of the federal criminal code.)

Toll records are not surveillance. They are dry data that don’t even prove that people spoke with each other — only that one phone number contacted another. And even if we assume there were conversations, it’s not a crime for a senator to speak with the president about a legislative matter — that’s actually an important part of a lawmaker’s job.

There is scant reason to believe that the FBI and Smith were trying to build a criminal case against the senators — if they had been, they’d have asked for more than four days of records. The only person the Justice Department ever indicted on the “fake electors” obstruction theory was Trump. Even Trump campaign officials who were deeply immersed in the “fake electors” scheme were not federally charged. The likelihood here is that the FBI and the DOJ were looking for corroborating evidence against Trump: They were trying to prove that he was actively interfering in the congressional proceeding by pressuring lawmakers. The senators would likely have been witnesses, not targets of the probe. Trump was the target.

This is all obvious from the J6 indictment. (See here, at pp. 5–6, 21–27.) Moreover, right before President Trump took office in January 2025, Smith filed a final report in which he outlined the “fake electors” plot; the report contains a footnote that details some of the telephone evidence the investigation turned up. Interestingly, it indicates that Smith didn’t get much of value from the toll records of the senators. (See here, pp. 11–16, and p. 31 & n.132.)

From its Hoover origins, the FBI has been an agency driven by written reports. Any time the bureau gathers evidence, it completes a written report. If the FBI acquired toll records (and we have long known that it did), then there should be one or more reports detailing that effort, including any analysis of the records that was done. That is standard operating procedure. Had there been a trial of the matter, such reports would presumably have been disclosed in discovery.

The theatrical outrage over all of this is a sight to behold. You can’t merely think about this controversy in the mindset of October 2025, after Trump has won the 2024 election, thus demonstrating that voters were not as obsessed by Trump’s post-2020 election conduct (though they didn’t approve of it) as Democrats were. You have to go back in time, to when the FBI and Smith were conducting their investigation.

Trump was impeached over the J6 conduct. In the aftermath of the riot, Democrats (along with anti-Trump Republicans) were smoldering at their Trump-allied colleagues in the House and Senate for what they regarded as the latter’s complicity in instigating an uprising in which many security personnel were injured and lawmakers were imperiled. The Democrats’ “insurrection” rhetoric was over the top (and there’s thus something precious about their current conniptions over Trump’s “insurrection” rhetoric). Nevertheless, today’s Trump storyline that the riot was essentially a peaceful protest that got out of control because Democrats prevented the assignment of adequate security forces is ridiculous.

The House J6 Committee, which was formulated in unabashed flouting of House rules meant to ensure bipartisan balance, touted the evidence that some House members had been in touch with the Trump White House to discuss possible pardons for their post-election actions; in the zeitgeist of that moment, those members didn’t believe that congressional representatives would be untouchable; they worried that a vindictive Biden DOJ might prosecute them for impeding the ratification of Biden’s victory. You can disagree with the Democrats’ rhetoric of the time that their Republican counterparts had crossed the line from aggressive partisanship into felony misconduct; that the rhetoric was intense, though, and that the Biden DOJ was influenced by it is undeniable.

While the Justice Department did not indict anyone other than Trump in the “fake electors” scheme, there were indictments of other alleged participants in several states, though no members of Congress were charged. Last month, for example, a judge in Michigan threw out one of the cases; the similar charges brought by Fulton County District Attorney Fani Willis could soon meet a similar fate; and while “fake elector” prosecutions in Arizona and Nevada have run into judicial headwinds, the case in Wisconsin seems headed for trial. It’s also worth noting that in Willis’s prosecution, she compelled testimony from Senator Lindsey Graham regarding his post-2020 election communications with Georgia’s secretary of state. (As I wrote at the time, Senator Graham’s claim of immunity from testimony was rejected; Willis was eventually disqualified for her misconduct in the investigation.)

The point here is that, in the years following the Capitol riot, which saw the impeachment, the J6 probe, and Smith’s investigation, there was simply nothing remarkable about allegations — not just suspicions but outright accusations — that Republican members of Congress were complicit in a scheme to derail Biden’s 2020 victory. It was openly discussed, and it is patent from the charges and investigative reports that were filed.

That does not mean that prosecutable crimes were committed. To my mind, Smith was just as insensitive to the issue of congressional speech-and-debate immunity as he was regarding presidential immunity, the issue that derailed his J6 prosecution. (See Trump v. United States.) But that is hindsight. From the 2020 election through the 2024 election, when investigators were aggressively digging, no one would have been surprised to hear that senators’ toll records had been scrutinized. Both Smith and the J6 Committee vigorously sought testimony from Pence despite the palpable immunity and separation-of-powers complications; if they were openly squeezing the vice president, why should anyone be shocked to hear that they perused four days’ worth of senators’ phone records around the time of a riot at the Capitol over which the president had been impeached?

I suspect there are three things going on here.

First, when Patel released the FBI report on Monday, Attorney General Bondi was scheduled to testify before the Senate Judiciary Committee the following day. The FBI’s disclosure ensured that Bondi and committee Republicans would have something to be indignant about during the four-hour hearing; it served as a counterweight to committee Democrats, who tried to grill Bondi regarding her Justice Department’s politicized investigations and dropping of an investigation of Trump border “czar” Tom Homan — specifically, whether Homan accepted cash in a paper bag from undercover FBI agents.

Second, President Trump wants any FBI agent or DOJ prosecutor who participated in the investigations of him to be terminated. Indeed, the New York Times has reported that Director Patel fired two highly regarded FBI agents this week, for no apparent reason other than that they worked on Smith’s investigation. Because most of government employees have civil service protections, firing them for merely carrying out tasks assigned by their superiors is complicated. From a public relations standpoint, it helps to be able to portray the firings of the agents as the result of a “spying on the Senate” scandal rather than as retribution. But it is retribution.

Finally, the Trump Justice Department under Bondi continues to make its top priority a revisionist history of the 2020 election. We are to understand that January 6 is something that Democrats did to President Trump, rather than something Trump did to the nation. Democrats have their own lawfare abuses to blame for this development, and for the fact that Trump defied the odds and reclaimed the presidency despite his enduring unpopularity among half of voters. That doesn’t mean the revisionist history is true. It’s not.